Through this petition under Section 426, Cr.P.C., petitioner/appellant Syed Shahzad Hussain Kazmi, seeks suspension of sentence in case F.I.R. No. 965, dated 23.12.2002 under Sections 302/34/109 registered at P.S. Model Town, Gujranwala.
2. The petitioner was convicted by the learned Additional Sessions Judge Gujranwala vide judgment dated 31.3.2007, under Section 302(b), P.P.C, and sentenced to imprisonment for life. He was further directed to pay Rs. 50,000/- to the legal heirs of the deceased or in default thereof to further undergo six months' S.I. Benefit of Section 382-B, Cr.P.C, was extended to the petitioner.
Adeel Butt, co-accused of the petitioner was sentenced to death.
Against the said conviction and sentence the petitioner had filed Crl. A. No. 561/2007 which has not been fixed for hearing so far.
3. Learned counsel for the petitioner/appellant contends that earlier petitions for suspension of sentence were dismissed on merits but the present petition has been filed on statutory ground under Section 426(1A)(c), Cr.P.C, as in. This case the conviction was passed on 31.3.2007 and more than 4!4 years have passed since the conviction of the petitioner and his appeal has not been decided so far without any delay oh the part of the petitioner. Further contends that the petitioner is behind the bars since January 2006.
4. Conversely, learned counsel for the complainant assisted by the learned D.P.G, has opposed the suspension of sentence on the ground that earlier petitions for suspension of sentence were dismissed by this Court on merits vide orders dated 09.6.2008 and 13.7.2009 and that the petitioner alongwith his co-accused was convicted for the murder of an innocent person hence the petitioner can be termed as a hardened and desperate criminal.
5. Heard. Record perused.
6. Admittedly the petitioner was arrested in January 2006. After the trial his case was decided on 31.3.2007 and more than 4 1/2 years have passed since the conviction of the petitioner but his appeal has not been fixed so far The latest amendment was made in Cr.P.C, through Act No. VIII of 2011, on 18.4.2011 which is reproduced as under:- (1A) An Appellate Court shall, except where it is of the opinion that the delay in the decision of the appeal has been occasioned by an at or omission of the appellant or any other person acting on his behalf, Order a convicted persons to be released on bail who has been sentenced ---
(a) ............... ......................
(b) ......................................
(c) to imprisonment for a period exceeding seven years and whose appeal has not been decided within a period of two years of his conviction: Provided that provisions of the foregoing paragraphs shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Appellate Court, is a hardened desperate or dangerous criminal or is accused of an at of terrorism punishable with death or imprisonment for life.
From the above amendment it is quite clear that if the appeal of any convict is not decided within two rears of his conviction then the Appellate Court Shall release him on bail if the delay in the 'decision of the appeal has not been occasioned by an at or omission of the appellant or any other person acting on his behalf. From the record it reveals that the appeal of the appellant could not be decided for about more than 4 1/2 years and delay is not occasioned by the at of the appellant or any person acting on his behalf. The change made in statute from previous practice in exercise of discretion made it clear that now the person would be entitled not as a discretion but as a matter of right. The word 'shall' used in the above amendment does not mean 'may' and is to be read in its ordinary sense.
7. The suspension of sentence can be refused if the petitioner is found to be a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who in the opinion of the Appellate Court is a hardened, desperate or dangerous criminal or accused of an at of terrorism punishable with death or imprisonment for life, In the present case the case was tried by the ordinary Court and not by the Anti-Terrorism Court. The petitioner has no previous criminal record nor any such record the learned counsel for The complainant or the learned D.P.G. The argument of the learned counsel for the complainant that in this case a , person was murdered hence the petitioner can be termed as a hardened and desperate criminal, has no force a| in that eventuality the legislature should have mentioned in this amendment that the accused of a murder case will not avail the said concession mentioned in the latest amendment. The decision of appeal within the period provided under Section 426(1A)(c), Cr.P.C, is statutory right of a convict if appeal is not decided within the specified period then statutory right of suspension of sentence is not to be withheld because the accused acquires a right by virtue of this amendment.
8. Consequently, this petition is allowed and conviction and sentence awarded to the petitioner/appellant by the learned Trial Court vide judgment dated 31.3.2007 is suspended till the final decision of the main appeal, subject to his furnishing bail bonds in the sum of Rs. 2,00,000/- (Rupees two lac) with two sureties in the like amount to the satisfaction of D.R. (Judicial) of this Court. The petitioner/appellant is directed to remain in attendance on each and every date of hearing of the main appeal.